{ "id": 6141223, "name": "Vaughn Dale KIRKENDOLL v. STATE of Arkansas", "name_abbreviation": "Kirkendoll v. State", "decision_date": "1997-05-28", "docket_number": "CA CR 96-1040", "first_page": "321", "last_page": "332", "citations": [ { "type": "official", "cite": "57 Ark. App. 321" }, { "type": "parallel", "cite": "945 S.W.2d 400" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "36 Ark. App. 40", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136828 ], "weight": 5, "year": 1991, "pin_cites": [ { "page": "44", "parenthetical": "citation omitted" }, { "page": "290", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/ark-app/36/0040-01" ] }, { "cite": "323 Ark. 743", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445744 ], "weight": 4, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/323/0743-01" ] }, { "cite": "896 S.W.2d 874", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1451184, 1451318 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0344-02", "/ark/320/0380-01" ] }, { "cite": "320 Ark. 380", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451318 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0380-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-71-208", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1995, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-71-229", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 1995, "pin_cites": [ { "page": "(b)(l)" }, { "page": "(d)(l)(A)" }, { "page": "(b)(3)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 798, "char_count": 18596, "ocr_confidence": 0.752, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.17494185954470703 }, "sha256": "7803eaef0b861f36cac939edc2e2df9eebc0b301923ef133f2017369947e6f40", "simhash": "1:b4727485d3f6043c", "word_count": 3276 }, "last_updated": "2023-07-14T16:10:06.660800+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Stroud and Neal, JJ., agree." ], "parties": [ "Vaughn Dale KIRKENDOLL v. STATE of Arkansas" ], "opinions": [ { "text": "Margaret Meads, Judge.\nVaughn Dale Kirkendoll was convicted by a jury of stalking in the second degree. He was sentenced by the court to three years\u2019 incarceration in the Arkansas Department of Correction. Appellant argues on appeal that he did not intelligently and voluntarily waive his right to counsel and was therefore deprived of counsel, and that the trial court imposed an illegal sentence. We disagree and affirm.\nThe charge of stalking in the second degree was brought against appellant in response to his threats and actions toward his ex-wife, Kathi Kirkendoll. A person commits the offense of stalking in the second degree, a Class C felony, if he \u201cpurposely engages in a course of conduct that harasses another person and makes a terroristic threat with the intent of placing that person in imminent fear of death or serious bodily injury.\u201d Ark. Code Ann. \u00a7 5-71-229(b)(l) (Supp. 1995). \u201cCourse of conduct\u201d is defined as \u201ca pattern of conduct composed of two (2) or more acts separated by at least thirty-six (36) hours, but occurring within one (1) year.\u201d Ark. Code Ann. \u00a7 5-71-229(d)(l)(A) (Supp. 1995). The term \u201charasses\u201d employed in \u00a7 5-71-229(b)(1) means acts of harassment as defined in Ark. Code Ann. \u00a7 5-71-208(a) (Supp. 1995). Those parts of \u00a7 5-71-208 relevant here define harassment as follows:\n(a) A person commits the offense of harassment if, with purpose to harass, annoy, or alarm another person, without good cause, he:\n* * *\n(3) FoEows a person in or about a public place; or\n* * #\n(5) Engages in conduct or repeatedly commits acts that alarm or seriously annoy another person and that serve no legitimate purpose; or\n(6) Places the person under surveiflance by remaining present outside his or her school, place of employment, vehicle, other place occupied by the person, or residence, other than the residence of the defendant, for no purpose other than to harass, alarm, or annoy.\nArk. Code Ann. \u00a7 5-71-208(a) (Supp. 1995). See also Wesson v. State, 320 Ark. 380, 896 S.W.2d 874 (1995).\nAfter the parties separated in January 1995, Ms. Kirkendoll obtained a restraining order against her husband. However, he continually violated this order by following her and going to her home and to her place of employment. In April 1995, appellant told her that it did not matter where she hid from him, that he could just come into church on a Sunday morning and blow her away. The next day, appellant appeared at the church where Ms. Kirkendoll and their daughters were attending a spaghetti supper. She notified the police, but appellant left before any police officers arrived.\nMs. Kirkendoll testified that on July 22, she and her daughters went to the movie theater, and appellant entered the theater and sat down behind them. He did not speak to Ms. Kirkendoll, but he spoke to their older daughter. Ms. Kirkendoll stated that his conduct scared her because she did not know what he planned to do. She saw him again six days later at McDonald\u2019s, when he called their children outside to talk to them. She said that she was afraid he would try to take the children.\nMs. Kirkendoll further testified that on August 1, appellant followed her to a funeral, and on August 7, she found a note on her car from appellant stating that he was not going to be a weekend dad. On August 13, appellant called Ms. Kirkendoll and told her that she had taken the girls away from him and that he would \u201cget her for that.\u201d On August 14, Robert Williams, a deacon in her church, told her that appellant had said that if he killed her [Ms. Kirkendoll] that it would be \u201cokay in the eyes of God.\u201d At that point, Ms. Kirkendoll decided to press charges against appellant.\nAt appellant\u2019s first appearance on August 31, 1995, the following colloquy ensued:\nTRIAL COURT: All right, you have the right to remain silent. Anything you say can and will probably [be] used against you in court. You have a right to have an attorney present with you during any questioning. If you can\u2019t afford an attorney, you need to fill out an affidavit and one will be appointed to represent you if you qualify at no charge to you. You have a right to answer any questions if you want to but at any time you decide you don\u2019t want to answer any more questions, all you have to do is say, I don\u2019t want to answer any more questions or I would like to have my attorney present and the questioning will stop. Do you understand?\nKIRKENDOLL: (Nodding head up and down.)\n* * *\nTRIAL COURT: We are going to set your arraignment on the 14th. If you are released on bond, you need to be here that day with your attorney. If you can\u2019t afford an attorney, you need to fill out the affidavit as I said and someone will be appointed to represent you at your arraignment, or earlier if it\u2019s necessary.\nAt appellant\u2019s arraignment on September 14, 1995, the court again questioned appellant about whether he had retained an attorney:\nTRIAL COURT: Do you have an attorney?\nKIRKENDOLL: No, sir.\nTRIAL COURT: Are you going to hire an attorney?\nKIRKENDOLL: No, sir.\nTRIAL COURT: Have you filed an affidavit for a court-appointed attorney?\nKIRKENDOLL: No, sir.\nTRIAL COURT: Are you going to proceed pro se, which means you are going to be your own lawyer?\nKIRKENDOLL: Yes, sir.\n* * *\nTRIAL COURT: You are here today for an arraignment. This is the time for you to enter your plea. Since you are proceeding without counsel, I\u2019m going to advise you of your rights. You have the right to remain silent throughout these proceedings and even in the trial. You have the right to have an attorney present if you want to have one. If you choose not to, that\u2019s your choosing. You have a right to cross-examine any of the witnesses that the State would put on the stand against you. You have the right to call any witnesses on your behalf if you wish. And, if you can\u2019t get those witnesses here voluntarily, they could be subpoenaed at the expense of the State. Do you understand that?\nKIRKENDOLL: Yes, sir.\nTRIAL COURT: You have the right to an appeal. If the decision of the Court or the jury is adverse to what you\u2019d like for it to be, you have the right to a jury trial which will be a speedy trial. The jury would have [to] vote unanimously to find you guilty. Do you understand all those rights?\nKIRKENDOLL: Yes.\nTRIAL COURT: You are charged with stalking in the second degree. It is alleged that on the 6th day of April, 1995, through the 14th day of August, 1995, you purposely engaged in a course of conduct that harassed another person and made a terroristic threat with the intent of placing that person in imminent fear of death or serious bodily injury of her immediate family. This is a Class C felony. How do you plead?\nKIRKENDOLL: Not guilty.\nTRIAL COURT: I am going to require the State to provide discovery by November the 1st and you to provide discovery by November the 27th.\nKIRKENDOLL: What do you mean by discovery?\nTRIAL COURT: Discovery is where you will give to them a list of all the witnesses that you intend to call and any defenses that you may have. They will be required to do the same to you, okay? They will also be required to give you a recommendation if they intend to make one, what could be a plea agreement. If you want to accept that, then you can do that on the date that\u2019s set for the intent date which is November the 27th. You need to be here on each of these days that are set \u2014 set out on this order. Read this order very carefully because it tells you what you\u2019re supposed to do.\nThe issue of appellant\u2019s lack of counsel was addressed a third time at the pretrial hearing on January 8, 1996:\nTRIAL COURT: Mr. Kirkendoll, your case is set for trial in two weeks, and you \u25a0 \u2014 \u25a0\nCASE COORDINATOR: It\u2019s January 23rd.\nTRIAL COURT: January 23rd. And you\u2019ve elected up to this point to have no attorney?\nKIRKENDOLL: Yes, sir.\nTRIAL COURT: Is that still the way you want to proceed? KIRKENDOLL: Yes, sir.\nTRIAL COURT: All right.\nDEPUTY PROSECUTOR: Your Honor, would the Court like to inquire of Mr. Kirkendoll\u2019s ability to defend himself?\nTRIAL COURT: Not at this point. I\u2019ll do it when we get closer to trial. Have you received discovery from the State?\nKIRKENDOLL: No, sir.\nTRIAL COURT: Mr. James, would you make that available to him today?\nDEPUTY PROSECUTOR: I did, but he just didn\u2019t want to take it the last court date.\nKIRKENDOLL: What discovery was that, sir?\nTRIAL COURT: The information that they have regarding the case, who their witnesses will be, what they intend to prove, et cetera. Have you \u2014\nKIPJECENDOLL: Where do I get this information?\nTRIAL COURT: From Mr. James.\nDEPUTY PROSECUTOR: I handed it to him in court last time and he handed it back to me and said he didn\u2019t want it.\nOn January 25, 1996, the day of appellant\u2019s trial, the following exchange occurred prior to jury selection:\nTRIAL COURT: I know that you have indicated that you want to go ahead and proceed without an attorney, but before I do that I want to make sure that you understand your rights.\nKIRKENDOLL: Yes, sir.\nTRIAL COURT: You know that you have the right to have an attorney representing you today?\nKIRKENDOLL: Yes, sir.\nTRIAL COURT: All right. Do you feel like you\u2019re competent to represent yourself?\nKIRKENDOLL: I feel like I\u2019m a competent person, sir. I don\u2019t know the law as what might forfeit in the courtroom.\nTRIAL COURT: All right. What kind of education do you have?\nKIRKENDOLL: I have a high school education.\nTRIAL COURT: Have you participated in the criminal justice system before?\nKIRKENDOLL: In no way.\nTRIAL COURT: You ever watched a trial?\nKIRKENDOLL: I\u2019ve watched more today than I ever have.\nTRIAL COURT: Have you read anything about the law in this case or \u2014\nKIRKENDOLL: No.\nTRIAL COURT: Know anything about a trial other than what you\u2019ve seen on television and what you\u2019ve seen here today?\nKIRKENDOLL: Not much, no.\nTRIAL COURT: Well, why have you decided to go forward without an attorney?\nKIRKENDOLL: I\u2019m not guilty.\nTRIAL COURT: All right. There are some things I need to tell you before we start \u2014 and I\u2019m not doing this to frighten you or scare you or make you worry, but I want to make sure that you understand what you are looking at. This is a jury trial.\nKIRKENDOLL: Yes, sir.\nTRIAL COURT: You\u2019ve asked for a jury trial.\nKIRKENDOLL: Yes, sir.\nTRIAL COURT: And there are \u2014 there are a lot of things that go on before a jury trial can begin. First thing will be the jury selection.\nKIRKENDOLL: Yes, sir.\nTRIAL COURT: I don\u2019t know, were you here the other day during jury selection?\nKIRKENDOLL: No, sir.\nTRIAL COURT: All right. The offense \u2014\nKIRKENDOLL: If it\u2019s all the same with you, sir, I would just as soon they picked the jury.\nTRIAL COURT: They?\nKIRKENDOLL: Yeah.\nTRIAL COURT: Who?\nKIRKENDOLL: I understand, you know, the two sides get together and pick the jury. I\u2019ll just let the prosecution pick the jury-\nTRIAL COURT: Okay. Let me go ahead and explain these things to you. The offense that you\u2019re charged with is a felony. It is a Class C felony and I believe the range of punishment is from three to ten years and a fine of up to $10,000 dollars. Do you understand that?\nKIRKENDOLL: Yeah. I didn\u2019t know what the penalty was, but\nTRIAL COURT: Okay. You understand that most people who go through this kind of trial have an attorney to represent them\nKIRKENDOLL: Uh-huh.\nTRIAL COURT: \u2014 because they need help. To you, having an attorney would be like me having a mechanic. If I tore into the engine in my car, I can guarantee you I wouldn\u2019t go very far after I went down the road.\nKIRKENDOLL: Me either, and I may not get very far.\nTRIAL COURT: All right. A competent lawyer is knowledgeable in the law, knowledgeable in the procedures, knowledgeable in the rules of evidence, and in the technical issues that would come up before the Court in this case. Even if you\u2019ve seen \u2014 seen some trials on television, even if you have some type of education in the law, you may not know all the technicalities that are involved. Are you sure you want to represent yourself?\nKIRKENDOLL: Your Honor, I gave 17 years to this woman, and if she wants to take three more from me, that\u2019s fine, or even seven more, ten more, whatever.\nTRIAL COURT: There are some other things I need to tell you, then. The Supreme Court has ruled that there \u2014 that you have the right to go into trial without a lawyer if that\u2019s what you want to do. Okay. You have the constitutional right to a lawyer and I\u2019ve explained that to you I think each time you\u2019ve been here. Maybe not the last time, but I\u2019ve tried to tell you that \u2014\nKIRKENDOLL: Yes, sir.\nTRIAL COURT: \u2014 that you have a right to a lawyer. Now, when we\u2019re out there, you can\u2019t be relying on me to tell you what the law is. The Supreme Court says I can\u2019t do that. I\u2019m a referee. I can\u2019t be the coach. You understand?\nKIRKENDOLL: Yeah.\nTRIAL COURT: You\u2019re going to be held to about the same responsibility that you would if [you] had a lawyer there. Okay. If you get frustrated and upset, I may exercise my discretion and take a break, but I can\u2019t coach you. I can\u2019t tell you what you need to do. If, for any reason, I find that you conduct yourself in a manner that is not civil or one that I find to be contemptuous, you may find yourself in jail for that. Do you understand that you will be held to the same standard as if Mr. James or Mr. Stephens went out there and said something inappropriate to the jury, or to a witness, or to me? They might find themselves in the jail as well. You understand that?\nKIRKENDOLL: Yes, sir.\nTRIAL COURT: All right. I\u2019m going to allow you to proceed; however, I am going to ask Mr. Stephens, who is the public defender here, to sit with you at the table. If you have any questions about what\u2019s going on, you can ask him. He won\u2019t be standing up and making objections. He won\u2019t be conducting the voir dire. He won\u2019t be doing the questioning. You will be doing that by yourself.\nAppellant allowed the State to select the jurors. During the trial, appellant\u2019s ex-wife was allowed to testify regarding incidents predating the parties\u2019 divorce, which were irrelevant to the current stalking charge; however, appellant did not object. Appellant allowed his minister to testify concerning matters about which appellant had spoken with him in confidence. When the State rested, the public defender, who the judge had asked to sit at the table with appellant, instructed him to make a motion for a directed verdict, which was denied.\nThe Sixth and Fourteenth Amendments to the United States Constitution guarantee that any person brought to trial in any state or federal court must be afforded the fundamental right to assistance of counsel before that person can be validly convicted and punished by imprisonment. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996). An accused person has a constitutional right to represent himself and make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel in his defense; however, every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Id. Certain requirements must be met before a trial court can find that an accused has knowingly and intelligently waived counsel and allow the accused to proceed pro se:\nA defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted; (2) there has been a knowing and intelligent waiver of the right to counsel; and (3) the defendant has not engaged in conduct which would prevent the fair and orderly disposition of the issues.\nBrooks v. State, 36 Ark. App. 40, 44, 819 S.W.2d 288, 290 (1991) (citation omitted).\nThe accused must have full knowledge and adequate warning concerning his rights and a clear intent to relinquish them before waiver can be found. Id. Waiver of the right to counsel presupposes that the court has discharged its duty of advising appellant of his right to counsel, questioning him as to his ability to hire independent counsel, and explaining the desirability of having assistance of counsel during the trial and the problems attending one representing himself, since a party appearing pro se is responsible for any mistakes he makes in the conduct of his trial and he receives no special consideration on appeal. Id. It is the State\u2019s burden to show that an accused has voluntarily and intelligently waived his right to counsel. Oliver, supra; Brooks, supra.\nIn the present case, the trial judge questioned appellant at each stage of the proceeding with regard to his desire to proceed pro se. The recited portions of the record indicate that the trial judge sufficiently questioned appellant about his desire to appear pro se and the consequences of defending himself. In fact, we believe that this trial judge went to greater lengths than were necessary to ensure that appellant had every possible opportunity to request the assistance of counsel.\nThe record does not indicate that appellant ever requested and was denied counsel. Quite to the contrary, the record is replete with dialogue between the trial judge and appellant in which the judge inquired as to appellant\u2019s intent to employ counsel. Each time, appellant unequivocally stated that he would represent himself. Appellant never apprised the court that he was financially unable to hire an attorney; in fact, after being instructed that if he could not afford an attorney he could complete an affidavit and one would be appointed, appellant told the court that he would not complete the affidavit and that he intended to represent himself. From our review of the record, we determine that appellant knowingly and intelligently waived his right to counsel; therefore, his first argument must fail.\nFor his second point on appeal, appellant argues that his sentence was unauthorized by statute and therefore illegal. Appellant\u2019s point is without merit. Fie was convicted of stalking in the second degree, a Class C felony, which is punishable by a sentence of not less than three years nor more than ten years. See Ark. Code Ann. \u00a7\u00a7 5-71-229(b)(3) (Supp. 1995) and 5-4-401(a)(4) (Repl. 1993). Appellant was sentenced to three years in the Department of Correction, which is a proper sentence under the statutes.\nAffirmed.\nStroud and Neal, JJ., agree.", "type": "majority", "author": "Margaret Meads, Judge." } ], "attorneys": [ "Montgomery, Adams & Wyatt, PLC, by: Dale E. Adams, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Gil Dudley, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Vaughn Dale KIRKENDOLL v. STATE of Arkansas\nCA CR 96-1040\n945 S.W.2d 400\nCourt of Appeals of Arkansas Division I\nOpinion delivered May 28, 1997\n[P etition for rehearing denied July 2, 1997.]\nMontgomery, Adams & Wyatt, PLC, by: Dale E. Adams, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Gil Dudley, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0321-01", "first_page_order": 357, "last_page_order": 368 }